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Today, at the House Judiciary Full Committee’s Hearing on the “Constitutionality of the Individual Mandate,” Ranking Member John Conyers, Jr. (D-Mich.) and his Democratic colleagues stressed how the Affordable Healthcare Act’s foundations are constitutionally sound, invoking the Constitution’s plain language, past Supreme Court cases, and the establishment of federal programs, such as Medicare and Social Security.

Mr. Conyers and other Judiciary Democrats emphasized the critical importance for the minimum coverage requirement to be coupled with efforts to prevent insurance companies from terminating coverage for people with pre-existing conditions.  They argued that, without the individual mandate, citizens would pay higher taxes and experience double-digit premium increases.

Below is an excerpt of Mr. Conyers’ hearing remarks:

Indeed, the position that my Republican colleagues are taking is curious. After all, they were for the individual mandate long before they were against it.

Senators Orrin Hatch and Charles Grassley, along with 18 of their Republican colleagues included the idea of an individual mandate in their “Health Equity and Access Reform Today Act of 1993,” their counter to President Clinton’s plan. 

Former Massachusetts Governor Mitt Romney featured an individual mandate as part of his successful health care reform law, where it helped reduce insurance premiums by 40 percent while the national average has increased 14 percent.

Given its demonstrated success, and the need to solve our national health care crisis, one would hope that my Republican colleagues would continue to embrace the idea.  But instead, they’ve gone on attack, now claiming that the individual mandate is unconstitutional.

Were they wrong then, or are they wrong now?

I believe that they are wrong now – Congress has the clear power under Article I, Section 8, Clause 3 of the Constitution, which gives us authority to regulate commerce between the states.  That power is augmented by Article I, Section 8, Clause 18, which grants us discretion to choose the “Necessary and Proper” means of achieving our legitimate regulatory goals.  I’d like to explain briefly why our authority here is beyond question and their counter arguments should not carry the day.

First, their core argument, that this regulates “inactivity,” requires us to accept a complete fiction.  We all participate in the health care market.  No one can credibly claim that they will never get ill or injured and, in this country, we promise emergency care for all who need it.  We should be proud of that, but we also must find a better way to pay for it.  The cost of uncompensated care was $43 billion in 2008 alone, and those costs are shifted to other Americans who pay higher taxes and increased fees for medical care and insurance premiums. The individual mandate recognizes the reality that we are all “active” in the health care market and regulates how and when we pay for our health care.  Doing so is well within Congress’s power.

Second, while some of my colleagues may score political points by making this “inactivity” argument, it is – as President Ronald Reagan’s Solicitor General Charles Fried explained to our Senate colleagues – “in any event irrelevant” as a matter of law. 

Solicitor General Fried is not a partisan supporter of the Affordable Care Act, but he is a staunch defender of our Constitution. In his view, the individual mandate is fully constitutional because Congress unquestionably has the power to regulate the interstate health and insurance markets and discretion to choose the “Necessary and Proper” means of doing so.  He testified on this before our Senate colleagues and I would like to seek unanimous consent to enter his statement into the record today.

Finally, we have been hearing that this is all about individual liberty, the right to be let alone.  But is it really?  For example, states can, and do, require citizens to purchase car insurance.  And, in Massachusetts, legislation signed by former Governor Romney obligates that state’s residents to purchase health insurance.  Many other laws impose affirmative obligations on our citizenry:  we must pay taxes, send our children to schools and vaccinate them, contribute to Medicare and Social Security, to name just a few. Surely some citizens would like to avoid these requirements as well.  But, aside from religious objectors, who also are excused here, they have no constitutionally recognized right to do so.  The liberty interests at stake do not change simply because it is the federal, rather than the state, government that is imposing the requirement.  While we can debate whether the Congress has the power to impose this requirement – something I believe we clearly do – we should not scare Americans into believing that how we resolve that question says anything about their individual liberty.

I look forward to hearing from our witnesses today, and hope that they can shed additional light on the points that I have made.

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